 A significant number, if not the majority, of employees in the United States use company owned computers to access the Internet for personal purposes. With the recent controversy surrounding the misuse of Pentagon computers used to access, and in some cases purchase, child pornography, there is a renewed interest in how employers should regulate workplace Internet Access and their potential liability for failure to prevent their more egregious misuse.
1. The Need for Clear Internet Use Policies
It is essential for employers to have clearly spelled out, and clearly communicated, policies regarding Internet Use and the right of the employer to monitor such use. Prohibited uses need to be specifically articulated, including those that may appear obvious to management. No matter who the employer, the policy needs to provide notice of the employer's right to monitor and audit an employee's use of the Internet and make clear that there is no expectation of privacy in an employee’s use of the Internet when doing so through a company owned computer issued for business purposes.
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 NOTE FROM THE EDITOR: We reported on the Quon v. Arch Wireless case many moons ago (see here for our summary). In that opinion, the Ninth Circuit held that -- in the case before it -- the employee police officers had a reasonable expectation of privacy in the text messages they sent and received on their employer-provided PDAs.
The media had a field day, proclaiming the end of employer monitoring of employee electronic communications. However, as we explained in our summary, the case didn't go that far. It was limited to situations where the electronic communication did not reside on the employer servers (contrary to the practice of most company email systems), and where there was an informal policy that the employer would not monitor the communications (contrary to most employers' express policy permitting monitoring).
Guess what? This may not be the end of the story. According to Alston & Bird employment and privacy specialist Jesse Jauregui, today the U.S. Supreme Court has just picked up the case for review (under the caption City of Ontario, California v. Jeff Quon, et al.). See here.
Based on how the Ninth Circuit usually gets treated by the U.S. Supremes, anyone want to bet how this one will come out?
Here's Jesse's take on the Supreme Court's action:
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If only I could be paid for my commute. See, I live in the South Bay (the Southern California version) and commute to downtown Los Angeles along the 405, 105 and 110 freeways. It's neither quick, nor particularly attractive. (I save a little time in my Natural Gas Honda Civic, which gets me in the carpool lane, but not nearly as much as I did P.H. (pre-hybrid). Now that those pesky Prius’ are allowed in the carpool lanes, I often go no faster than the carbon monoxide spewing Hummers two lanes over.)
So imagine if I could get paid for commuting. I’d be rich!... and wouldn’t need to commute to work anymore. Think of the incentives in car-happy California? I might even want to drive in the slow lanes (which is redundant, especially during “rush hour,” which isn’t an hour and no one rushes.)
But getting paid to sit in morning gridlock listening to NPR (fine, Mark & Brian) would be wrong, wouldn’t it?
Mike Rutti decided to find out (or perhaps his attorney did). Rutti v. Lojack Corp. is the result.
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 A small splash was made recently when a Sacramento television news station reported that the California Department of Public Health had issued a memo to furloughed employees that they should consider taking a second job at Target or Macys.
It seemed the government workers at the DPH didn’t like the idea of being told to moonlight at local retailers. And who can blame them.
Only that’s not really the way it happened. (I know, hard to believe a local television news report might have misinterpreted something and then blown it all out of proportion.)
Nonetheless, this provides a few valuable lessons for both employers and employees when circumstances are such that secondary employment may become necessary.
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